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2004 DIGILAW 149 (JHR)

Banshi Rout v. State of Bihar (Now Jharkhand)

2004-02-10

VISHNUDEO NARAYAN

body2004
Judgment Vishnudeo Narayan, J.- This appeal at the instance of the appellants stand directed against the impugned judgment and order dated 30.11.1998 passed in Session Trial No. 282 of 1993 by Shri Dhruv Narayan Upadhaya, 1st Additonal Sessions Judge, Giridih whereby and whereunder appellant Jagdeo Raut and Bansi Raut were found guilty for the offence punishable under Section 324 of the Indian Penal Code and they were convicted and sentenced to undergo R.I. for two years and to pay a fine of Rs. 200/and in default thereof to undergo S.I. for 15 days and appellant Damodar Raut was found guilty for the offence punishable under Section 323 of the Indian Penal Code and he was convicted and sentenced to undergo R.I. for six months and to pay a fine of Rs. 200/- and in default thereto to undergo S.I. for 15 days. However, the appellants aforesaid and other co-accused persons were not found guilty for the offence under Section 302/149, 147 and 148 of the Indian Penal Code and they were acquitted in respect thereof. Case of co-accused Nakul Raut has been separated and sent to the juvenile court vide order dated 8.1.1998 for trial. 2. The prosecution case has arisen on the basis of the fardbeyan (Ext. 4) of informant Arjun Raut (since dead) the brother of Latan Raut, the deceased in this case recorded by A.S.I., N.K. Singh at the place of occurrence i.e. Pandeybari Bahiyar of village Manditar, P.S. Hirodih, District Giridih on 15.6.1991 at 9.45 hours regarding the occurrence which is said to have taken place on that very day at 6.00 hours and the case was instituted against the appellant and others by drawing of a formal F.I.R. on that very day at 17.00 hours which was received on 16.6.1991 in the court empowered to take cognizance. 3. 3. The prosecution case, in brief, is that the informant along with his brother D.W.2, Nand Lal Yadav was ploughing his land in Pandeybari Bahiyar of village Manditar at 6.00 hours on 15.6.1991 and the appellants along with other co-accused persons, all resident of village Manditar, armed with gaita, lathi, bhala, pinjor, sword and spade came there and they prevented them ploughing the said land and getting the information in respect thereof Latan Raut, the brother of the informant came to the said field to know the reasons for that and then the appellants and the other accused persons all of a sudden started assaulting them and co-accused Nakul Raut, who was armed with a gaita, suddenly gave a blow by that gaita on the chest of Latan Raut as a result of which he fell down and died instantaneously. It is alleged that the persons of the vicinity intervened to rescue them and in course of that PW.7, Ramdeo Mahto and one Banwari Raut (since dead) have received injuries on their person. It is further alleged that PW.1, Bhikhan Mahto, P.W.2, Mahabir Mahto, P.W.3, Somnath Raut besides Mathura Yadav and Khosal Raut (both not examined) have witnessed the occurrence. It is alleged that the land aforesaid was in continuous cultivating possession of the informant and on the day of the occurrence the appellants and other co-accused persons claimed the said land as their own and they prevented the informant from ploughing the said land by forming an unlawful assembly and they have assaulted and committed the murder of Latan Raut. 4. The appellants have pleaded not guilty to the charges levelled against them and they claim themselves to be innocent and to have committed no offence and that they have been falsely implicated in this case due to land dispute. 5. The prosecution has in all examined ten witnesses to substantiate its case. P.W.7, Ramdeo, Mahto is an ocular witness of the occurrence said to have sustained injuries on his person in the occurrence besides one Banwari Raut (since dead) P.W.1, Bhikhan Mahto, P.W.2, Mahabir Mahto and P.W.3, Somnath Raut claims themselves to be the ocular witnesses of the occurrence. P.W.5, Kodni Devi, the mother of P.W.2 not named in the fardbeyan also claims herself to be an ocular witness of the occurrence. P.WA, Bandu Raut and P.W.6, Janardan Raut are the witnesses of the inquest report (Ext. P.W.5, Kodni Devi, the mother of P.W.2 not named in the fardbeyan also claims herself to be an ocular witness of the occurrence. P.WA, Bandu Raut and P.W.6, Janardan Raut are the witnesses of the inquest report (Ext. 5) regarding the dead body of deceased Latan Raut and their signatures thereon are Ext. 1 and 1/1 respectively. P.W. 8, Dr. B.P. Singh has conducted the postmortem examination on the dead body of the deceased and the postmortem report per his pen is Ext. 2 and he has also examined P.W.7, Ramdeo Mahto and Banwari Raut (since dead) regarding the injuries appearing on their person and the injury report per his pen in respect thereof are Exts. 3 and 3/1 respectively and the requisition of the police for their medical examination are Ext. 7 series. P.W.9, Nand Kumar Singh and P.W.10, Ratan Lal Sinha are the Investigating Officers of this case and Ext. 6 is the seizure list in respect of the blood stained earth seized from the place of occurrence. Informant Arjun Raut and. Banwari Raut, the other injured have died during the pendency of this case and they could not be examined in this case for the prosecution. D.W.1 Vijay Nandan Pandey and D.W. 4, Mohan Das are the formal witnesses who have proved serial no. 40 (Ext. A) relating to co-accused Nakul Raut appearing in the admission register of Dhiro Singha Middle School and the signature of the Principal (Ext. 3) thereon and his School Leaving Certificate (Ext. C) as well as the plaint of Title Suit No. 34/92 (Ext. J) and signatures (Ext. K to K/10) respectively of Shri Nirmal Kumar, Advocate on each page of the said plaint. D.W.2, Nand Lal Yadav who is said to be ploughing the land in question at the time of the occurrence with informant Arjun Raut has figured as a defence witness. D.W. 3 Prayag Yadav is also a formal witness who has proved three rent receipts (Ext. H series) regarding the land of khata no. 36 of village Manditar and the Hukumnama (Ext. 1). D.W. 3 Prayag Yadav is also a formal witness who has proved three rent receipts (Ext. H series) regarding the land of khata no. 36 of village Manditar and the Hukumnama (Ext. 1). Ext D, E and Fare the certified copy of the order sheet of Case No. 6/86 regarding the cancellation of zamabandi of Khata No. 36 between the Circle Officer, Jamua and Beni Raut, father of appellant Bansi Raut, certified copy of the order of Miscellaneous Zamabandi Case No. 144/88-89 between Khosal Raut and co-accused Mangi Raut and certified copy of the order in Revenue Revision No. 110/ 89 between Khosal Raut and co-accused Mangi Raut respectively. 6. Relying upon the evidence of P.W.7 read with P.Ws 1,2,3 and 5 corroborated by the evidence of the medical witness and Ext. 3 series, the learned court below came to the finding of the guilt of the appellants and convicted and sentenced them as stated above. 7. Assailing the impugned judgment it has been submitted by the learned counsel for the appellants that the learned court below has not properly scanned, scrutinized and weighed the evidence on the record in proper perspective and has committed a manifest error in coming to the finding of the guilt of the appellants. It has been submitted that the averments made in the fardbeyan is conspicuously silent regarding these appellants assaulting P.W.7, Ramdeo Mahto and Banwari Raut rather there is a simple and facile averment therein that they had sustained injuries in the occurrence when they had intervened in the assault to save the informant and others. It has also been contended that P.W.1, Bhikhan Mahto and one Mathura Yadav are the attesting witnesses on the said fardbeyan and said Mathura Yadav does not figure as a witness for the prosecution in this case and the evidence of P.W.1, Bhikhan Mahto is totally false regarding the assault on P.W.7, Ramdeo Mahto and Banwari Raut in view of the fact that he has not stated before the I.O. in respect thereof in his statement under Section 161 of the Cr. P.C. and P.W.10, the I.O. has specifically deposed in para 17 of his evidence in respect thereof and the evidence of P.W.3 has also to be discarded on that score in view of the testimony of P.W.10, the I.O. appearing in para 19 of his evidence. P.C. and P.W.10, the I.O. has specifically deposed in para 17 of his evidence in respect thereof and the evidence of P.W.3 has also to be discarded on that score in view of the testimony of P.W.10, the I.O. appearing in para 19 of his evidence. It has also been contended that P.W.5 Kodni Devi is the mother of P.W.2, Mahabir Mahto and she has not been named in the fardbeyan as an ocular witness of the occurrence and she has been deliberately set up by the prosecution as an ocular witness of the occurrence and P.W.2 and P.W.5 are inimical to the appellants and co-accused persons and a reference has been made to paragraphs 6 and 7 of P.W.2 which evidences the fact that he figures as an accused in the counter case. It has also been submitted that P.W.2 has also stated in para 1 of his deposition that he has simply stated before the I.O. in his statement under Section 161 of the Cr.P.C. that Banwari Raut and Ramdeo Mahto had sustained injuries in the occurrence but he has not named as to who were the persons who had caused the aforesaid injuries on their person. It has further been submitted that there are inherent inconsistencies and material contradictions in the testimony of the aforesaid alleged ocular witnesses regarding the manner of assault on the person of P.W.7, Ramdeo Mahto and Banwari Raut which is not at all in strict conformity with the medical evidence on the record and as such the impugned judgment is unsustainable. 8. It has been submitted by the learned A.P.P. that P.W.7, Ramdeo Mahto had sustained injuries in the occurrence in question and he has deposed that appellant Bansi Raut and Jagdeo Raut have assaulted him by sword and bhala respectively causing injury on his left thigh and left arm and appellant Damodar Raut has also assaulted him by lathi causing injury on his back and P.Ws. 1,2,3 and 5 in their evidence have supported the assault on P.W.7, Ramdeo Mahto by appellant Bansi Raut and Jagdeo Raut as deposed by P.W.7 and they have also stated in their evidence regarding assault by Damodar Raut causing injury on the left knee of Banwari Raut by lathi and the medical evidence also corroborates the existence of injuries on the person of P.W.7, Ramdeo Mahto as well as on the person of Banwari Raut and in view of the evidence on the record the learned court below has rightly come to the finding of the guilt of the appellant and there is, therefore, no illegality in the impugned judgment. 9. It will admit of no doubt that the occurrence has taken place on 15.6.1991 at 6.00 hours in which Latan Raut has been done to death when he had come to the place of occurrence for getting information regarding obstruction put in ploughing the land in question. Co-accused Nakul Raut, a juvenile is said to have caused the fatal blow on Ratan Raut as a result of which he succumbed to death instantaneously at the place of occurrence itself. I have already stated above that the trial of Nakul Raut stands split and has been forwarded to the juvenile court for the needful and all other co-accused persons including the appellant were acquitted for the offence under Sections 147, 148 and 302/149 of the Indian Penal Code. According to the prosecution case P.W.7, Ramdeo Mahto and one Banwari Raut (since dead) have intervened in the scuffle to rescue informant Arjun Raut, Nand Lal Yadav and Latan Raut and in course of their intervention they are said to have been assaulted. It is essential to mention at the very outset that 8 fardbeyan of informant Arjun Raut (since lead and not examined in this case) is silent as to which of the co-accused persons including the appellant has assaulted them though Mathura Yadav and P.W.1, Bhikhan Mahto figured as an attesting witnesses on the fardbeyan (Ext. 4). Said Mathura Yadav has been named as an ocular witness of the occurrence in question besides P.W.1, Bhikhan Mahto and others but said Mathura Yadav has not been examined in this case for the prosecution. 4). Said Mathura Yadav has been named as an ocular witness of the occurrence in question besides P.W.1, Bhikhan Mahto and others but said Mathura Yadav has not been examined in this case for the prosecution. It is true that the F.I.R. is not the substantive piece of evidence and it is also not necessary that the F.I.R. may contain the minutest details of the occurrence but it is essential that the F.I.R. must contain at least the basic facts constituting an offence alleged against the accused. P.W.8, Dr. B.P. Singh has deposed to have examined P.W.7, Ramdeo Mahto on 15.6.1991 at 14.20 hours and has found the following injuries on his person : (i) A penetrating wound with clean cut edges on left fore-arm 1/2" x 1/4" x 3/4". (ii) Incised wound on left fore-arm 1 1/4" x 1/2" x muscle deep. (iii) Incised wound on left thigh, 1 1/4" x 1/4" x muscle deep. The medical witness has further deposed that all the aforesaid injuries were caused by sharp instrument and injury no. (ii) and (iii) are simple in nature and he had advised for X-Ray for injury no. (i) but the X-Ray plate has never been produced before him. The medical witness has also deposed to have examined Banwari Raut on that very day at 14.30 hours and has found one bruise with swelling on his left leg 3" x 1/2", the nature of which is simple caused by hard and blunt substance may be by lathi. He has also deposed that injury no (i) aforesaid appearing on the person of P.W.7, Ramdeo Mahto may be caused by bhala and the other two injuries may be caused by a sword. Ext. 3 series are the injury reports in respect of P.W.7, Ramdeo Mahto and Banwari Raut aforesaid which corroborate the testimony of the medical witness. P.W.9, Nand Kumar Singh, A.S.I. who has recorded the fardbeyan of the informant at the place of occurrence has found injuries on the person of P.W.7, Ramdeo Mahto and Banwari Raut and has issued requisition Ext. 7 series for their examination by the medical witness. He has further deposed to have found blood fallen at the place of occurrence which was seized by him and the seizure list in respect thereof has been prepared by him which is Ext. 6. 7 series for their examination by the medical witness. He has further deposed to have found blood fallen at the place of occurrence which was seized by him and the seizure list in respect thereof has been prepared by him which is Ext. 6. It is equally pertinent to mention here that there is omnibus allegation in the fardbeyan (Ext.4) that all the co-accused persons and the appellants were variously armed with gaita, lathi, bhala, pinjar, sword and spade and juvenile co-accused Nakul Raut had given the fatal blow on Latan Raut by gaita. The fardbeyan does not recite specifically that appellant Bansi Raut and appellant Jagdeo Raut were armed with sword and bhala respectively and appellant Damodar Raut was armed with bhala or lathi. P.W.7, Ramdeo Mahto is the resident of village Papania which is situated 5 "kosh" away from village Manditar and informant is his maternal uncle where he comes once or twice in a year on occasions. There is no evidence on the record that P.W.7, Ramdeo Mahto and Banwari Raut have any semblance of enmity against the appellants. In the background aforesaid let us now advert to the evidence of the alleged eye witnesses. P.W.7, Ramdeo Mahto has deposed that on the day of the occurrence he was at the house of his maternal uncle in Manditar and hearing the alarms he went to the place of occurrence to pacify the quarrel. He has deposed that when he reached at the place of occurrence he saw Latan Raut fallen on the ground having injury on his chest from which blood was oozing. His evidence is further to the effect that when he intervened in the occurrence to pacify the quarrel, appellant Bansi Raut gave a blow on his left leg by sword and appellant Jagdeo Raut assaulted him by bhala causing injury on his left hand and appellant Damodar Raut gave a blow by lathi on his back as a result of which he became unconscious. In para 7 of his cross examination he has deposed that prior to his arrival at the place of occurrence Mathura Raut and widow of Latan Raut deceased were present there but no other person of Manditar had come there. In para 7 of his cross examination he has deposed that prior to his arrival at the place of occurrence Mathura Raut and widow of Latan Raut deceased were present there but no other person of Manditar had come there. It is pertinent to mention here that the evidence of P.W7 excludes the persons of P.Ws 1,2,3 and 5 at the place of occurrence when he was assaulted as deposed by him. Widow of Latan Raut and Mathura Raut do not figure as prosecution witnesses in this case. P.W7 does not whisper in his evidence regarding assault perpetrated on Banwari Raut by appellant Damodar Raut. In the concluding portion of para 15 of his evidence he has specifically deposed that each of the appellant has given only one blow on his person. He has also deposed that there was cut mark on his lungi which he was wearing at the time of the occurrence as a result of the blow given by the sword and his sando banyan, lungi and underwear were drenched with blood but he has not shown his blood stained clothes to the I.O. The evidence of this witness does not explain as to how injury no.2 on his left fore-arm has occurred. The medical witness has also not found any injury on the person of P.W.7 caused by hard and blunt substance. P'W1, Bhikhan Mahto has deposed in para 2 of his evidence that P.W.7, Ramdeo Mahto and Banwari Raut intervened in the occurrence to rescue the informant and others and co-accused persons including the appellants assaulted them. He has further deposed that the appellant Bansi Raut assaulted Ramdeo Mahto by sword causing injury on his left thigh and appellant Jagdeo Raut assaulted him causing injury on his left arm and appellant Damodar Raut also gave a bhala blow causing injury on his left hand. It is pertinent to mention here that P.W. 7, Ramdeo Mahto has deposed that appellant Damodar Raut has assaulted him by lathi causing injury on his back and, therefore, the evidence of P.W.1 stands contradicted in respect thereof. It is pertinent to mention here that P.W. 7, Ramdeo Mahto has deposed that appellant Damodar Raut has assaulted him by lathi causing injury on his back and, therefore, the evidence of P.W.1 stands contradicted in respect thereof. In para 8 of his cross examination P.W.1 has deposed to have stated about the assault by the appellants as deposed by him to the I.O. in his statement under Section 161 of the Cr.P.C. P.w. 10, the I.O. in para 17 of his cross examination has deposed that Bhikhan Mahto has not stated before him that the coaccused persons including the appellants have assaulted Ramdeo Mahto and Banwari Raut and he has also not stated that appellant Bansi Raut by sword, Jagdeo Raut by bhala and Damodar Raut by bhala have assaulted Ramdeo Mahto causing injury on his left thigh and left hand respectively. It, therefore, appears that there is embellishment in the evidence of P.W.1, Bhikhan Mahto and it cannot be said that he had the occasion to witness the assault on Ramdeo Mahto as deposed by him. However, P.W.1 does not whisper regarding the assault on Banwari Raut by appellant Damodar Raut caused by lathi. P.W 3 Somnath Raut has also deposed in para 2 of his evidence regarding the assault on Ramdeo Mahto as deposed by P.W.1. He has further deposed that appellant Damodar Raut has assaulted Banwari Raut by lathi causing injury on his left leg. In para 17 of his cross examination he has deposed that after assaulting Ramdeo Mahto, Damodar Raut assaulted Banwari Raut by the lathi portion of the said bhala. RW.10, the I.O. in para 19 of his testimony has deposed that P.W.3, Somnath Raut has not stated before him in his statement regarding the assault on Ramdeo Mahto and Jagdeo Raut. Therefore, the evidence of RW.3 lacks credence in respect thereof. RW.2 has deposed regarding assault on Ramdeo Mahto by sword and bhala by appellant Bansi Raut and Jagdeo Raut causing injury on his left thigh and left arm respectively. He has also deposed that appellant Damodar Raut has also assaulted Banwari Raut on his back and left knee by lathi. Therefore, the evidence of RW.3 lacks credence in respect thereof. RW.2 has deposed regarding assault on Ramdeo Mahto by sword and bhala by appellant Bansi Raut and Jagdeo Raut causing injury on his left thigh and left arm respectively. He has also deposed that appellant Damodar Raut has also assaulted Banwari Raut on his back and left knee by lathi. However, he does not say in his evidence regarding the assault by appellant Damodar Raut on Ramdeo Mahto by bhala and as such RW.2 contradicts the testimony of RWs 7, 1 and 3 as well as of RW.5 on Ramdeo Mahto caused by Banwari Raut by bhala. RW.5 not named as an ocular witness of the occurrence in the fardbeyan has only deposed regarding assault by appellant Bansi Raut by sword and appellant Jagdeo Raut and Damodar Raut by bhala each causing injury on the left thigh and left hand of Ramdeo Mahto respectively. It is relevant to mention here that RW.7 in his evidence has ruled out the persons of RWs. 1,2,3 and 5 at the place of occurrence at the time of his assault. Informant Arjun Raut and alleged injured Banwari Raut have not taken oath in this case as they are dead. Nand Lal Raut who was admittedly present at the place of occurrence and ploughing the land in question has not taken oath for the prosecution rather he has been examined as D.W.2 and in his cross examination by the prosecution it has not been elicited at all by the prosecution regarding as to how the injuries have been caused on the person of Ramdeo Mahto and Banwari Raut for the reasons best known. It, therefore, appears that there is material contradictions and inconsistencies in the testimony of the prosecution witnesses regarding the assault on P.W.7 Ramdeo Mahto and Banwari Raut in the said occurrence by the appellants which cast a cloud of suspicion to its credibility. There is also no evidence on the record regarding explaining as to how the incised wound on the left fore-arm of Ramdeo Mahto has been caused when appellant Damodar Raut is armed with bhala and there is specific evidence of P.W.7 that each of the appellant has given him only one blow. There is also no evidence on the record regarding explaining as to how the incised wound on the left fore-arm of Ramdeo Mahto has been caused when appellant Damodar Raut is armed with bhala and there is specific evidence of P.W.7 that each of the appellant has given him only one blow. Furthermore all the aforesaid witnesses are inimical to the appellants and they have animus to depose falsely and P.W.7 has specifically ruled out their presence at the place of occurrence when he along with Banwari Raut was assaulted. As such the evidence of the aforesaid witnesses lacks credence and it cannot be said that the prosecution has established the charge under Section 324 of the Indian Penal Code against appellant Bansi Raut and Jagdeo Raut and under Section 323 of the Indian Penal Code against appellant Damodar Raut. In view of the facts, circumstances and materials on the record there appears reasonable doubt regarding the assault on Ramdeo Mahto and Banwari Raut by the appellants in the manner as alleged. The learned court below did not meticulously consider the evidence on the record in proper perspective and has erred in coming to the finding of the guilt of the appellant. Viewed thus the impugned judgment is unsustainable. 10. There is merit in the appeal and it succeeds. The appeal is hereby allowed. The impugned judgment of the learned court below is hereby set aside. The appellants are found not guilty to the charges levelled against them and they are, accordingly, acquitted and discharged from the liability of the bail bonds.